DISTRICT COURT OF QUEENSLAND
CITATION: R v Kamler [2023] QDC 27 PARTIES: THE QUEEN v BRETT WILLIAM KAMLER (defendant) FILE NO/S: 143/2022 DIVISION: Criminal PROCEEDING: Ruling ORIGINATING District Court, Maroochydore COURT: DELIVERED ON: 30 January 2023 (Ruling) 2 March 2023 (Reasons) DELIVERED AT: Maroochydore HEARING DATE: 30 January 2023 JUDGE: Long SC DCJ RULING: The Crown case lacks sufficient evidential basis such that a jury
could convict on the evidence.CATCHWORDS:
CRIMINAL LAW – PROCEDURE – VERDICT – POWER OF JUDGE TO DIRECT VERDICT – Where the jury were directed to find the defendant not guilty because there was no case to answer –
Where the Court has power to direct a verdict of not guilty in circumstances where there is a defect in the evidence such that it
will not sustain a verdict of guilty. CRIMINAL LAW – DRUGS MISUSE ACT 1986 – PROTECTION OF INFORMERS – Whether there is an evidential basis for any conclusion that the information was shared “in respect
of the commission of an offence defined in Part 2” – Whether there is an evidential basis for any conclusion that the information was provided on the basis that the informer’s identity would remain confidential. LEGISLATION: Drugs Misuse Act 1986 (Qld) ss 9, 11, 129(1)(c), 46, 47, 119, 120 Drugs Misuse Regulation 1987 (Qld) sch 2 Penalties and Sentences Act 1992 (Qld) ss 13A and 13B CASES: Commissioner of the Police Service v Cornack [2004] 1 Qd R 627 Doney v The Queen (1990) 171 CLR 207
McEwan v The Council of the City of the Gold Coast & Ors [1986]
QSC FC 13
Fraser v The Irish Restaurant & Bar Company Pty Ltd [2008] QCA
270
Rigney v Littlehales & Ors [2005] QCA 252
R v Demir (1990) 2 Qd R 433
R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220
R v Mason (2000) 112 A Crim R 266
R v Stewart, ex parte Attorney-General [1989] 1 Qd R 590R v The Stipendiary Magistrate at Southport, ex parte Gibson [1993] 2 Qd R 687 COUNSEL: S O’Rouke for the Prosecution D Jones KC for the Defendant SOLICITORS: Office of the Director of Public Prosecutions
Gnech & Associates for the DefendantIntroduction
On 30 January 2023, the defendant pleaded not guilty when arraigned in respect of
the charge that on 9 October 2020 at Nambour in the State of Queensland, he
unlawfully disclosed the name of an informer, contrary to s 119(2) of the Drugs
Misuse Act 1986 (“DMA”). Accordingly, a jury was empanelled, the prosecutor case
opened and the prosecution evidence presented, on that same day. At the close of the
prosecution case, counsel for the defendant made a submission as to there being an
absence of a case for his client to answer. After submissions and on 31 January 2023
and upon it being ruled that there was no case for the defendant to answer, the jury
were directed to and did return their verdict acquitting the defendant. These are…
Continue reading R v Kamler
Sign in free to access the full text
Details
- AGLC
- R v Kamler [2023] QDC 27
- Case
- [2023] QDC 27
- Decision Date
CaseChat Overview and Summary
In the matter of R v Kamler, the appellant was appealing against his conviction and sentence for drug-related offences. The case was heard in the Supreme Court of Queensland, where the appellant challenged the trial judge's direction to the jury that there was no case to answer, effectively resulting in a not guilty verdict. The central issue before the court was whether the trial judge had the authority to direct a verdict of not guilty when there was insufficient evidence to sustain a conviction.
The court examined the applicable legal principles concerning the power of a judge to direct a verdict. It was established that such a direction is only permissible when there is no possibility, however slight, that a rational jury could find the defendant guilty based on the evidence presented. The court considered the weight of authority that supported the notion that an informer, as defined by statute, must be someone who provides information in confidence to a police officer in their official capacity. The court also acknowledged the importance of maintaining the confidentiality of informers to protect the flow of information to law enforcement agencies.
Upon reviewing the evidence, the court found that the trial judge had correctly exercised his discretion in directing the jury to find the appellant not guilty. The court concluded that there was no evidence that could rationally support a conviction, as the only evidence against the appellant came from an informant whose identity could not be disclosed, and there was no corroborating evidence to support the informant's testimony. Consequently, the court upheld the trial judge's decision, affirming the appellant's acquittal.
The court did not make any further orders in this regard.
The court examined the applicable legal principles concerning the power of a judge to direct a verdict. It was established that such a direction is only permissible when there is no possibility, however slight, that a rational jury could find the defendant guilty based on the evidence presented. The court considered the weight of authority that supported the notion that an informer, as defined by statute, must be someone who provides information in confidence to a police officer in their official capacity. The court also acknowledged the importance of maintaining the confidentiality of informers to protect the flow of information to law enforcement agencies.
Upon reviewing the evidence, the court found that the trial judge had correctly exercised his discretion in directing the jury to find the appellant not guilty. The court concluded that there was no evidence that could rationally support a conviction, as the only evidence against the appellant came from an informant whose identity could not be disclosed, and there was no corroborating evidence to support the informant's testimony. Consequently, the court upheld the trial judge's decision, affirming the appellant's acquittal.
The court did not make any further orders in this regard.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Each of the decisions to which reference has been made was referred to in Commissioner of the Police Service v Cornack [2004] 1 Qd R 627. Relevantly, in the judgment of Jerrard JA, it was observed: “[40] These examples and arguments demonstrate that it is proper to construe the expression “an informer” in s. 119 and s. 120 as describing a person who supplies information in confidence to a person known or believed to be a police officer, in respect of the commission of an offence by another. As Williams J.A. remarked during argument, that appropriate concept is reasonably well expressed in s. 454(2)(b) of the Police Powers and Responsibilities Act, in its description of a “confidential source of information, in relation to the enforcement or administration of the law…” [41] In Gibson, Williams J. referred (at 692) to the decision of the House of Lords in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 at 218 for a description of the common law rationale of the rule applied in those courts prohibiting the identification of police inform ants. Lord Diplock wrote: ‘if their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence.’ [42] I respectfully observe that an informative and useful discussion of this topic appears in the judgment of Bleby J. in R. v. Mason (2000) 77 S.A.S.R. 105, and particularly at 110–116. After considering (at 111) the variety of circumstances in which information will be provided to the police, ranging from those who give a formal interview intending it to be the basis of their evidence given in court to those who anonymously provide information, his Honour expressed the view that given the rationale for the (common law) rule, namely the preservation of anonymity, there must be present an element of confidentiality in the identity of the informer; and that it is only the assurance of confidentiality of that identity that prevents the valuable sources of information from drying up. He went on (at 112) to observe that the community will only protect the identity of a person where the information is given upon condition that the confidence is honoured and that the person's identity will not be disclosed or upon an assurance by the recipient that that will be the case. ….. [44] To that concept of confidentiality of identity described in R. v. Mason and in s. 454(2)(b) of the Police Powers and Responsibilities Act, which concept is an integral part of the definition of “an informer” in s. 119 and s. 120 of the Drugs Misuse Act, there can be added the allied concept of the circumstances necessarily giving rise to that confidentiality, and well described in a judgment of Fullagar J. in Signorotto v. Nicholson [1982] V.R. 413 at 417 (ll. 27-31). This is that such an informer has given: ‘…the policeman information received in his character as a policeman and as part of his duties in upholding the law.’ [45] Construing the expression “an informer” in s. 119 and s. 120 to mean one who supplies information about other people's behaviour in confidence to a police officer in the latter's character as a police officer and who receives the information in the exercise of the functions of the Police Service described in . of the Police Service Administration Act 1990, gives those sections an effect consistent with the common law…” Muir J expressed a general agreement with the reasons of both Williams and Jerrard JJ.A. And relevantly in the judgment of Williams JA, the following was observed:
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.